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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-05-04 Daily Xml
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Bills

Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:22): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Child Sex Offenders Registration Act 2006 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:23): I move:

That this bill be now read a second time.

I am very pleased to introduce the Criminal Law Consolidation (Child Sexual Abuse) Amendment Bill 2023. Although this is a short and relatively straightforward bill, it is a significant one that seeks to change the heading of section 50 of the Criminal Law Consolidation Act 1935 from 'Unlawful sexual relationship with a child' to 'Sexual abuse of a child' and consequently remove the connotations of consent in the current heading of the offence.

The decision to make this heading change is, in no small part, as a result and a recognition of the tireless work and advocacy of Ms Grace Tame and The Harmony Campaign, particularly that using the term 'relationship' to describe the offence inappropriately applies some sort of mutual responsibility and consent and has the ability to give perpetrators licence to characterise their abusive behaviours as consensual.

I was very fortunate to meet Ms Grace Tame earlier this year in March and to hear more about the Grace Tame Foundation's Harmony Campaign and the advocacy for change in the wording of this offence, and why it was so necessary and significant for victim survivors of child sexual abuse for preventing such abuse from occurring in the future, and for the broader campaign of consent to sexual activity.

As most will be aware, Grace Tame was Australian of the Year in 2021 in recognition of her extraordinary work, particularly around prevention and awareness in relation to child sexual abuse in Tasmania. There she became the first woman in that state to legally be granted the right to speak under her own name with regard to her personal experience of sexual abuse as a child. Ms Tame has since used that platform as Australian of the Year in the most powerful of ways to continue her fearless campaigning, including involvement in the national #LetHerSpeak and #LetUsSpeak campaigns, which were led by Nina Funnell, sexual assault campaigner and Walkley Award winning journalist.

Ms Tame was bravely the lead case study in this campaign, which received very significant media attention, having partnered with News Corporation, Marque Lawyers and End Rape on Campus Australia, raising much-needed awareness around child sexual abuse. Ms Tame has also used this national recognition as an opportunity to establish the Grace Tame Foundation. The foundation aims to ensure that the Australian government and governments of states and territories take appropriate action by enacting laws, delivering educational programs and encouraging social behaviours.

One of the biggest takeaways I got from my meeting in March with Ms Tame was her clear message that the language we use is critically important. This is not just because of how it is interpreted by the legal profession and the judiciary, although of course that is important, but perhaps even more importantly, for how the general public are delivered information and how awareness is generated through the media.

Ms Tame explained this to me in a very poignant example to emphasise this point. While her childhood sexual abuse perpetrator was a federally funded University of Tasmania PhD student, he was having a public discussion on a Facebook post. In that discussion, someone called him a paedophile, referring to his 2011 convictions, which included possession of child sexual abuse material. In a blatant act of cowardice, the perpetrator publicly defended himself by hiding behind the words of the offence, saying, 'No, I was convicted of maintaining a relationship', before bragging about his crimes and describing them in graphic terms.

The language of that charge, in effect, in Ms Grace Tame's words, 'was soft enough to give him a shield to enable his fantasy'. Clearly, it would have been a much more pointed and uncomfortable accusation if the perpetrator had been forced to respond by saying that yes, he had been charged with an offence like sexual abuse of a child. In 2016, the perpetrator was then convicted of producing child exploitation material in descriptive form and for that served another prison term.

The changing of the language in this offence in South Australia is an important step in ensuring that the offence name accurately reflects the nature of the conduct and also achieves a change in how these offences will be reported without impacting on the existing operation. Currently in South Australia, section 50 of the Criminal Law Consolidation Act provides that an adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The maximum penalty for that offence is imprisonment for life.

This bill does not change the elements of the offence and, necessarily, maintaining an unlawful sexual relationship as described in the body of the offence will still be an element of the offence as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. This change is consistent with similar offences in Queensland, the ACT, New South Wales and Tasmania.

The new heading we are proposing in the Criminal Law Consolidation Act, 'Sexual Abuse of a Child', appropriately reflects the gravity of the offence which is entirely exploitative and predatory in nature, and also seeks to change how such offences might be reported on in the media, adding to the awareness of child sexual abuse and bringing accountability and transparency to these vile acts.

Importantly, the bill also inserts a new subsection into section 50 of the Criminal Law Consolidation Act to make it explicitly clear that the heading does not form part of the section, despite section 19 of the Legislation Interpretation Act, and that there is no intention for the wording of the offence in the heading to affect how a court might interpret and apply the appropriate penalties.

This bill makes a simple change that sends a powerful message about our opposition to child sexual abuse, our understanding of the experience of survivor victims and our desire to change the way this offence is described and handled. Language matters and we cannot give perpetrators of child sexual abuse a licence to characterise this abuse in any way, shape or form as consensual.

I thank the Hon. Tammy Franks, who I know has been working on a very similar bill to what we put forward today. I particularly want to thank the Hon. Connie Bonaros, who last year moved similar amendments to a bill that was already before parliament and graciously did not proceed with those amendments to give us a chance to make sure that we understood the nature and the consequences and to make sure there were no unintended consequences as a result of the change that we are making.

Most of all, I want to thank all the many advocates who have been relentless and courageous in advocating for change and awareness of child sexual abuse over the decades. I particularly thank the very brave victim survivors who are able to use their painful stories to raise awareness and ensure that other children are not subject to this type of abhorrent abuse and abuse of power.

To end, I would like to quote Grace Tame on the power and critical importance that these changes can have. Grace has said, and I quote:

Our legislation must reflect the unequivocal seriousness of this crime, which is never a child's desire, but instead a perverted fantasy projected onto and into them through a process of grooming which involves a stratagem of calculated—often invisible—offences designed to gradually increase a pre-existing stark power imbalance.

I commend this bill to the chamber and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 50—Unlawful sexual relationship with child

The heading of section 50 is amended by this clause. Section 50 is also amended to provide that, despite section 19 of the Legislation Interpretation Act 2021, the heading of the section is not part of the section and is not intended to affect the interpretation or operation of the section.

Schedule 1—Related amendments

Part 1—Amendment of Child Sex Offenders Registration Act 2006

1—Amendment of Schedule 1—Class 1 and 2 offences

The reference to an offence against section 50 of the Criminal Law Consolidation Act 1935 is amended by this clause such that the reference reflects the heading to that offence as amended by the measure.

Part 2—Amendment of Sentencing Act 2017

2—Amendment of section 81—Intensive correction orders

The reference in the definition of serious sexual offence to an offence against section 50 of the Criminal Law Consolidation Act 1935 is amended by this clause such that the reference reflects the heading to that offence as amended by the measure.

Debate adjourned on motion of Hon. L.A. Henderson.

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